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A Sweeping Change in The Law: Today Illicit Drug Use Became the Same as Drug Possession

On Wednesday, August 8, 2018, a decision1 was handed down by the Indiana Court of Appeals that is poised to dramatically increase the number of drug charges and convictions. This is alarming since the headlines of Indiana’s news stories continually recount the State’s “opioid crisis”. At the same time, statistics reflect county jails and Indiana’s prisons are “full” of inmates with drug convictions, at a significant burden to the taxpayer. This stands in contrast with compelling arguments and scientific evidence that other than stopping violence, drug issues are best dealt within the mental health system–not the penal system. Before this decision, basic drug charges and convictions–that fill our courts and jails/prisons–were based on drug (and/or drug-laden paraphernalia) possession, not mere use. That changed? This blog explores the Crittenden case—a game changer—that allows illicit drug use (it is not criminal) to essentially rely on the same evidence for the crime of drug possession (this is criminal).

In Crittenden, his girlfriend called 911 when she found him unresponsive with blue lips. After the emergency medical services arrived, Crittenden woke up and told medics he had used heroin or cocaine shortly before they were called. Crittenden showed clear signs of a drug overdose. The police also arrived on the scene and learned of situation. Crittenden was then charged with a Level 6 felony for possession of a narcotic drug. However, and again, use and of an illicit drug is not illegal. Nevertheless, at trial, the judge found Crittenden guilty of possession because of his statement to medics he used heroine or meth and evidence signs of overdose. No illegal drug was found the could support Crittenden’s possession of drugs.

To this point in time, the Indiana Supreme Court has held that the State is not required to introduce into evidence to subject contraband (illegal drug) to obtain a conviction for possession. The Crittenden case appears to go further based on properly applying the Legislature’s penal law; and it means that if you make a statement to medical personnel responding to your emergency that you may have used an illegal drug, and you have signs and symptoms of consistent with an overdose, it, or similar facts, inferentially support you had to have possessed the drug to consume it. Therefore, you have committed the crime of illegal possession of narcotics.

Crittenden’s defense was that possession means evidence of possession not mere evidence of use and overdose. Further, Crittenden argued that such a lax application of the law on possession equated consumption and use with possession and violated public policy because it would discourage people from seeking medical care. The Court of Appeals rejected this proposition and directed public-policy arguments to the lawmakers (Legislators) who make the laws the judiciary enforces and applies. With this, the Court of Appeals affirmed Crittenden’s conviction of Level 6 felony possession of narcotics.

This case may wind up being reviewed by the Indiana Supreme Court and re-decided. However, as of today, the Crittenden case appears to go one step further and blur or eliminate the line between illicit drug use (not illegal) and possession of illegal drugs. In legal analysis, the illegal drug use inferentially supports possession and any additional facts, including those made to a medical care provider, support a criminal charge and conviction.

This case has the potential to dramatically increase the number of charges and convictions for illegal drug possession and raises numerous legal questions; for instance, “Does the police officer who administers Narcan to an individual s/he responds to on an emergency call, then have to Mirandize the “victim” upon returning to consciousness or arrest them if they survive and relay to the officer they saved their life from their meth overdose?” Who knows? Know currently there is no answer.

Knowing the status of developments in the law is the key to avoiding criminal or civil liability and part of being an engaged citizenry in our participatory system of government. Bluntly, this information may keep you from unwittingly committing or admitting to a crime, being charged, convicted, and imprisoned. This blog post on a key new case was written by attorneys at Ciyou & Dixon, P.C. who handle criminal defense cases throughout the state. This blog is written for educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.

  1. Crittenden v. State, 18A-CR-206 (August 8, 2018).

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